23CA0678 Peo v Burden 01-30-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0678 Jefferson County District Court No. 22CR1765 Honorable Christopher C. Zenisek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jordon Christopher Burden,
Defendant-Appellant.
ORDER VACATED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE DUNN Tow and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025
Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Jordon Christopher Burden, appeals the trial
court’s restitution order. Because we agree with Burden that the
restitution order was entered beyond the statutory deadline without
a timely express good cause finding to extend the deadline, we
vacate the restitution order.
I. Background
¶2 On September 26, 2022, Burden pleaded guilty to felony theft
and the court sentenced him to one year in prison. The court then
ordered restitution and granted the prosecution ninety-one days “to
identify the amount.”1 The court added that “an objection may be
raised thereafter,” and that it would set a hearing “if there’s a
dispute about the amount.”
¶3 Forty-six days after sentencing, on November 11, the
prosecution filed a motion requesting restitution. A few days later,
the court granted the prosecution’s request that any objection be
filed within twenty-one days.
1 The plea agreement required Burden to pay restitution for all
losses proximately caused by his conduct, but said nothing about the timing of a restitution request.
1 ¶4 On November 30 — less than twenty-one days after the court’s
order — Burden objected to the restitution motion and requested a
hearing. A couple weeks later, the court ordered “[a] hearing may
be set.”
¶5 For reasons that aren’t apparent in the record, the court set
the restitution hearing on February 8, 2023 — 135 days after the
sentencing hearing. On that day, however, because the defendant
was not released from prison to attend the hearing, the parties and
the court agreed to reset the hearing, and the prosecutor said she
would “make sure to writ for the next hearing.”
¶6 Ultimately, on March 8 — 163 days after sentencing — the
court held the restitution hearing and ordered Burden to pay
$9,149.67 in restitution.
II. Analysis
¶7 Burden asks us to vacate the restitution order because it was
entered more than the ninety-one days after the statutory deadline
without a timely express good cause finding to extend the deadline.
¶8 A sentencing court must address restitution. See § 18-1.3-
603(1), C.R.S. 2024. One way to do that — as happened here — is
to order that the “defendant is obligated to pay restitution,” but to
2 defer determining the specific amount of restitution. § 18-1.3-
603(1)(b). If the court follows this approach, it must determine the
amount of restitution within ninety-one days of sentencing. See
§ 18-1.3-603(1)(b); see also People v. Brassill, 2024 COA 19, ¶ 24.
The ninety-one-day deadline “may be extended only if, before the
deadline expires, the court expressly finds good cause for doing so.”
People v. Weeks, 2021 CO 75, ¶ 5. Absent a timely good cause
finding, a trial court loses authority to enter a restitution order after
the statutory deadline has expired. See id. at ¶ 45.
¶9 Whether a court has authority to order a defendant to pay
restitution is a legal question that we review de novo. People v.
Roddy, 2021 CO 74, ¶ 23.
¶ 10 It’s undisputed that the trial court imposed restitution more
than ninety-one days after the September 2022 sentencing hearing
and without a timely and express finding of good cause to extend
the deadline. See Weeks, ¶ 40. The trial court therefore had no
authority to impose restitution in March 2023. See id. at ¶ 45.
¶ 11 Even so, the People urge us to affirm the restitution order.
They first argue that Burden invited the untimely restitution order
because he “failed to move for a prompt resolution of this matter
3 when he later worked with the prosecution to schedule their first
evidentiary hearing” after the statutory deadline had expired. The
problem with this argument, however, is that the record doesn’t
support it. From the limited record before us, all we know is that
Burden objected to the prosecution’s restitution request and
requested a hearing in a timely manner, well within the statutory
deadline. Nothing in the record suggests that Burden asked the
court to either extend the statutory deadline or set the hearing
beyond the deadline. Nor does it show he “worked with the
prosecution” to set the hearing outside the statutory deadline. The
record is simply silent as to why the restitution hearing was set
beyond the statutory deadline. For that reason, we don’t agree that
Burden invited the court to disregard its obligation “to ensure that
restitution is resolved” within the statutory deadline. See Brassill,
¶ 20; see also People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine of
invited error prevents a party from complaining on appeal of an
error that [he] has invited or injected into the case.”).
¶ 12 We are similarly unpersuaded by the People’s related
contention that Burden waived his statutory right to a timely
restitution order. Waiver is the “intentional relinquishment of a
4 known right or privilege.” Rediger, ¶ 39 (citation omitted). And
here, too, the record doesn’t show Burden intentionally relinquished
his statutory right to a timely restitution order. While we know that
the court set the restitution hearing beyond the statutory deadline,
we don’t know whether Burden pushed for an earlier date or
objected to the date ultimately selected. Cf. People v. Babcock, 2023
COA 49, ¶ 13 (holding that a defendant who asked the trial court to
set a restitution hearing after the ninety-one-day deadline expired
waived the right to challenge the timeliness of the order) (cert.
granted Apr. 8, 2024).
¶ 13 To be sure, nothing in the record shows that Burden asserted
his right to a timely restitution order. But the statute doesn’t
require him to do so. See § 18-1.3-603(1)(b), (2). Burden therefore
didn’t waive his right to have the amount of restitution resolved
within the statutory deadline by not asserting the right on the
record. See Rediger, ¶ 40 (“The requirement of an intentional
relinquishment of a known right or privilege . . . distinguishes a
waiver from a forfeiture, which is ‘the failure to make the timely
assertion of a right.’” (quoting United States v. Olano, 507 U.S. 725,
733 (1993))). Thus, on this record we simply can’t say that Burden
5 intended to relinquish his right to have restitution determined
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23CA0678 Peo v Burden 01-30-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0678 Jefferson County District Court No. 22CR1765 Honorable Christopher C. Zenisek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jordon Christopher Burden,
Defendant-Appellant.
ORDER VACATED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE DUNN Tow and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025
Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Jordon Christopher Burden, appeals the trial
court’s restitution order. Because we agree with Burden that the
restitution order was entered beyond the statutory deadline without
a timely express good cause finding to extend the deadline, we
vacate the restitution order.
I. Background
¶2 On September 26, 2022, Burden pleaded guilty to felony theft
and the court sentenced him to one year in prison. The court then
ordered restitution and granted the prosecution ninety-one days “to
identify the amount.”1 The court added that “an objection may be
raised thereafter,” and that it would set a hearing “if there’s a
dispute about the amount.”
¶3 Forty-six days after sentencing, on November 11, the
prosecution filed a motion requesting restitution. A few days later,
the court granted the prosecution’s request that any objection be
filed within twenty-one days.
1 The plea agreement required Burden to pay restitution for all
losses proximately caused by his conduct, but said nothing about the timing of a restitution request.
1 ¶4 On November 30 — less than twenty-one days after the court’s
order — Burden objected to the restitution motion and requested a
hearing. A couple weeks later, the court ordered “[a] hearing may
be set.”
¶5 For reasons that aren’t apparent in the record, the court set
the restitution hearing on February 8, 2023 — 135 days after the
sentencing hearing. On that day, however, because the defendant
was not released from prison to attend the hearing, the parties and
the court agreed to reset the hearing, and the prosecutor said she
would “make sure to writ for the next hearing.”
¶6 Ultimately, on March 8 — 163 days after sentencing — the
court held the restitution hearing and ordered Burden to pay
$9,149.67 in restitution.
II. Analysis
¶7 Burden asks us to vacate the restitution order because it was
entered more than the ninety-one days after the statutory deadline
without a timely express good cause finding to extend the deadline.
¶8 A sentencing court must address restitution. See § 18-1.3-
603(1), C.R.S. 2024. One way to do that — as happened here — is
to order that the “defendant is obligated to pay restitution,” but to
2 defer determining the specific amount of restitution. § 18-1.3-
603(1)(b). If the court follows this approach, it must determine the
amount of restitution within ninety-one days of sentencing. See
§ 18-1.3-603(1)(b); see also People v. Brassill, 2024 COA 19, ¶ 24.
The ninety-one-day deadline “may be extended only if, before the
deadline expires, the court expressly finds good cause for doing so.”
People v. Weeks, 2021 CO 75, ¶ 5. Absent a timely good cause
finding, a trial court loses authority to enter a restitution order after
the statutory deadline has expired. See id. at ¶ 45.
¶9 Whether a court has authority to order a defendant to pay
restitution is a legal question that we review de novo. People v.
Roddy, 2021 CO 74, ¶ 23.
¶ 10 It’s undisputed that the trial court imposed restitution more
than ninety-one days after the September 2022 sentencing hearing
and without a timely and express finding of good cause to extend
the deadline. See Weeks, ¶ 40. The trial court therefore had no
authority to impose restitution in March 2023. See id. at ¶ 45.
¶ 11 Even so, the People urge us to affirm the restitution order.
They first argue that Burden invited the untimely restitution order
because he “failed to move for a prompt resolution of this matter
3 when he later worked with the prosecution to schedule their first
evidentiary hearing” after the statutory deadline had expired. The
problem with this argument, however, is that the record doesn’t
support it. From the limited record before us, all we know is that
Burden objected to the prosecution’s restitution request and
requested a hearing in a timely manner, well within the statutory
deadline. Nothing in the record suggests that Burden asked the
court to either extend the statutory deadline or set the hearing
beyond the deadline. Nor does it show he “worked with the
prosecution” to set the hearing outside the statutory deadline. The
record is simply silent as to why the restitution hearing was set
beyond the statutory deadline. For that reason, we don’t agree that
Burden invited the court to disregard its obligation “to ensure that
restitution is resolved” within the statutory deadline. See Brassill,
¶ 20; see also People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine of
invited error prevents a party from complaining on appeal of an
error that [he] has invited or injected into the case.”).
¶ 12 We are similarly unpersuaded by the People’s related
contention that Burden waived his statutory right to a timely
restitution order. Waiver is the “intentional relinquishment of a
4 known right or privilege.” Rediger, ¶ 39 (citation omitted). And
here, too, the record doesn’t show Burden intentionally relinquished
his statutory right to a timely restitution order. While we know that
the court set the restitution hearing beyond the statutory deadline,
we don’t know whether Burden pushed for an earlier date or
objected to the date ultimately selected. Cf. People v. Babcock, 2023
COA 49, ¶ 13 (holding that a defendant who asked the trial court to
set a restitution hearing after the ninety-one-day deadline expired
waived the right to challenge the timeliness of the order) (cert.
granted Apr. 8, 2024).
¶ 13 To be sure, nothing in the record shows that Burden asserted
his right to a timely restitution order. But the statute doesn’t
require him to do so. See § 18-1.3-603(1)(b), (2). Burden therefore
didn’t waive his right to have the amount of restitution resolved
within the statutory deadline by not asserting the right on the
record. See Rediger, ¶ 40 (“The requirement of an intentional
relinquishment of a known right or privilege . . . distinguishes a
waiver from a forfeiture, which is ‘the failure to make the timely
assertion of a right.’” (quoting United States v. Olano, 507 U.S. 725,
733 (1993))). Thus, on this record we simply can’t say that Burden
5 intended to relinquish his right to have restitution determined
within the statutory deadline.2
¶ 14 Because the court didn’t enter the restitution order within the
statutory deadline, it lost authority to impose restitution and we
must vacate the restitution order. See Weeks, ¶ 45. And because
the entry of a restitution order that the court lacked authority to
enter “by definition, is not harmless,” People v. Mickey, 2023 COA
106, ¶ 11, we also reject the People’s contention that vacatur isn’t
required because Burden didn’t demonstrate prejudice from the
untimely order. See People v. Roberson, 2023 COA 70, ¶ 32
(observing that Weeks vacated the untimely restitution order
without considering harmlessness) (cert. granted Apr. 8, 2024).
¶ 15 Having vacated the restitution order, we needn’t consider
Burden’s alternate challenge to the amount of restitution imposed.
2 True, defense counsel requested a continuance at the first
restitution hearing because Burden wasn’t present. But that doesn’t matter because at that time the ninety-one-day statutory deadline had already passed and the court was without authority to order restitution.
6 III. Disposition
¶ 16 The restitution order is vacated and the case is remanded for
the trial court to amend the mittimus to reflect that no restitution is
owed.
JUDGE TOW and JUDGE BERGER concur.